Signing Apps

With the increasing digitization of documentation and the proliferation of smartphones, we’re seeing an interesting trend in the apps marketplace – apps that allow users to digitally “sign” PDFs or other document types with their fingers.

As a techie, I am impressed with the innovation; as a lawyer, they set off my bullshit detector.

The apps, despite being designed and marketed by non-lawyers, in various jurisdictions around the world, come with the expected assurances as to how absolutely legally valid and binding the resulting digital documents are.

The reality is that there are a variety of factors that will determine the valid execution of a legal document. Depending on where you are, who you are, what you’re signing and your history with the document in question, the digital signature may or may not be valid.

If you’re signing a trust document, or anything having to do with real estate or leases of a certain type – and you’re signing it with your finger on your iPhone – stop! There’s a host of legislation – including the Statute of Frauds, one of the oldest and most awesomely named pieces of law we have – that require that you put pen (or quill) to paper in order to create a legally enforceable agreement.

If you’re executing a Will on your smartphone, you will have what we lawyers call “not a Will” or an “unWill” or maybe a “non-Will.” In Ontario anyway – the execution requirements for that particular document are incredibly precise and the caselaw is full of decisions of judges determining what is, and what is not, a Will.

If you drafted the document and put it to someone else to sign on their phone, they’ve probably got a really good argument for a contra proferentem (not good for you) interpretation in the event of a contract dispute. Sorry for having to resort to Latin to make my point, but it’s an important one.

The reality is that most lay people fundamentally misunderstand the nature of a written agreement. It’s not some magical thing that binds all who sign it to whatever it contains – it’s just a piece of evidence that provides clarity about the terms of an agreement that may or may not be legally enforceable depending on a host of factors.

While the emerging technology is neat, you’re still going to want to rely on some rock solid legal advice before drafting, negotiating or executing any legal documents – now, and in the future (until Siri™ gets her law degree anyway). In the right hands, applications like these can make the way we do business a lot easier – but used incorrectly, they will cost you a lot more than the 99¢ purchase price.

Scott R. Young